Patrick Walshe: Social media to be next big legal minefield for firms

Patrick Walshe, partner in the employment and pensions group at Dublin firm Philip Lee, writes on the challenges posed to employers by social media.

Like it or loathe it, social media is a key feature of modern life. With every day that passes, we live more of our lives on the internet.

That’s fine as far as private life goes, but what happens when an employee’s social media postings affect their employer’s business? It’s an important question because the last 10 to 15 years have seen a sharp upsurge in cases involving social media coming before the courts and employment tribunals. This is a trend that will continue.

Claims usually involve an employee being fired because of abuse of social media. This tends to happen in three situations:

Firstly, employees abusing or insulting their employers online.

Secondly, employees abusing social media within the workplace itself, by harassing or bullying co-employees, for example.

Thirdly, where employees’ actions on social media have the capacity to cause embarrassment for their employer.

The final category is easily the hardest for employers to deal with. Very often it involves employees posting images or videos depicting inappropriate conduct that could damage their employer’s reputation.

Past cases in Ireland have included employees posing with imitation guns in holiday resorts in Bangkok and, notoriously, a case in 2016 in which an employee was fired after posting a video of himself snorting cocaine in a work bathroom, wearing a t-shirt with the company logo emblazoned on it.

It isn’t always a slam dunk for employers. There have been a number of cases where employees were fired because of their behaviour on social media, but still won unfair dismissal claims. Typically, this happens because an employee is able to demonstrate there was something unfair in the way they were dismissed or because they can satisfy the tribunal that firing them was a disproportionate reaction to what they did. Some cases are black and white — but the majority are not.

Employers, therefore, need to tread very carefully — if they haven’t followed fair procedures, or have been too punitive, they risk a damages claim being made against them. Usefully, there are a few simple precautions that an employer can take to reduce the risk.

First of all, it’s very important to maintain a written policy dealing with the use of social media, email and the internet in the workplace. That policy should set out clear and understandable rules on what is, and what is not, allowed. It should be handed to all staff when they start work.

The policy should also set out what an employer is realistically prepared to allow in practice. For example, if you have only a low threshold for personal email use in the workplace, that should be set out. Employers should also be explicit in saying that disciplinary action may be taken if employees breach the terms of the policy.

As well as that, it’s important that employers act fairly and proportionately when taking disciplinary action. The punishment should always fit the crime — in social media cases, if no damage has actually been suffered by the company, it’s going to be much harder to justify terminating the employee.

In a recent High Court case, for example, which involved allegations of inappropriate images being circulated by email, the High Court put some emphasis on the fact that there hadn’t actually been complaints about the images in the messages.

Social media is here to stay — and employers have to adapt to it. The area can be extremely difficult to navigate sometimes. Both employers and employees, alike, need to be smart.

Patrick Walshe is a partner in the employment and pensions group at Dublin firm Philip Lee. View his profile here. This article first appeared in the Irish Examiner.